Timing, circumstances dictate child support for adult children

By Paul Russell, AdvocateDaily.com Contributor

Adult children may not be eligible for child support once they have moved out of the house and lived independently for more than a year, even if their circumstances change, says Toronto family lawyer Gene C. Colman.

“The longer the time is between when the entitlement ended and one of the parents seeks to reinstate it, the more onerous it will be to prove it is necessary,” says Colman, principal of Gene C. Colman Family Law Centre.

He cites a recent decision by the Alberta Court of Appeal, where a father was successful in denying his ex-wife’s claim for child support and money to cover their 22-year-old daughter’s post-secondary school expenses.

Court documents show that after high school, the daughter went to university for two years, before leaving without completing her courses. She then lived with a boyfriend for just over a year, before moving back in with her mother and enrolling in a career college program.

The court decision tells us that the daughter worked on a part-time basis during her studies at the career college and obtained a student loan as well as a grant for her studies. However, when her mother learned about the student loan, she took steps to cancel it and instead paid her daughter’s tuition herself.

The mother brought a court application seeking orders for child support and post-secondary expenses from her ex-husband, the judgment states.

“She went to university, which he helped pay for, then she quit, and moved in with her boyfriend. She’s an adult, and no longer dependent,” he says.

The court judgment notes that the chambers judge dismissed the application for support because the daughter was no longer a “child of the marriage” under the Divorce Act.

“It was certainly a decision open for the chambers judge to make,” says Colman. “But it could have gone either way.”

The judge cited a 1993 decision, which advises that a determination as to whether a child attending a post-secondary institution should be considered a child of the marriage “requires examination of all of the circumstances.”

“This is by no means a slam dunk for either side,” says Colman.

“Based on the facts given in this decision, I would say that more likely than not the mom should have succeeded, but she didn’t,” says Colman.

If someone is asking for support to be reinstated, the onus is on them to prove the child is dependent on them, he says.

In this case, the judgment states there was “an inadequate evidentiary record to support a finding that the daughter was financially dependent on her parents.”

“It was up to the mother to show the dependence, maybe by saying something like ‘The budget for food is X amount, and she’s taking up a room I could have otherwise rented out,’” says Colman.

If a child has taken a hiatus from school, he says it can be helpful to prove there always was a long-term strategy to further that person’s education.

“Show that they did something socially useful, or started working because there were not enough funds in the family to go to school right away, and the plan was always to go to school,” he says.

In all cases, Colman says appellants have to use common sense and be reasonable in their expectations.

“Put yourself in the position of the judge,” he says. “Is this the sort of case where a judge, who is human, is going to order child support?”

Because there are so many factors involved, Colman says it is hard to say how long someone can be out of school and then awarded support payments.

“If we look at other cases, we see a wide range of results on facts that are similar,” he says.

In one instance, Colman says a judge ruled that three years of full-time employment was sufficient hiatus for independence, and support was not ordered for a 25-year-old who decided to return to college.

In the same year, however, Colman says a 21-year-old who took a three-year hiatus after high school graduation was granted reinstatement of support in order to go back to school.

“I don’t want people to be misled that the decision is as simplistic as this Alberta case,” he says.

“Generally speaking, for the cases I’ve looked at, a two- or three-year hiatus means that support will not be awarded,” Colman says.